People v. Carter, Cr. 5910

Citation48 Cal.2d 737,312 P.2d 665
Decision Date21 June 1957
Docket NumberCr. 5910
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas CARTER, Defendant and Appellant.

Robert K. Stone, Chico, Laughlin & McKalson and Robert E. Laughlin, Chico, for appellant.

Edmund G. Brown, Atty. Gen., Doris H. Maier and J. M. Sanderson, Deputy Attys. Gen., and C. Keith Lyde, Dist. Atty., Oroville, for respondent.

TRAYNOR, Justice.

Defendant was convicted of murder in the first degree, and the jury imposed the death penalty. A motion for a new trial was denied. This appeal is automatic. Pen.Code, § 1239(b).

On September 29, 1955, about 3:35 p.m., Frank Carey, owner of the Log Cabin Bar near Chico, was found unconscious on the floor of the card room of his bar, his head bloody and bruised. He never regained consciousness and died several hours later as a result of his injuries.

Defendant was in the bar from the time Carey opened it about 12:30 p.m. until shortly after 3 p.m., drinking beer, playing the pinball machine, and talking with other customers. Witnesses testified that he was wearing khaki trousers, a dark jacket, and a cap with a pushed-up bill. His grey Dodge pickup truck was parked out in front. The last person to see him in the bar was a salesman who arrived about 3 p.m. and stayed about five minutes. He spoke briefly with Carey and defendant. Carey told him that business had been good that week and that he was holding a twenty-dollar bet on the World Series. About 3:35 p.m. Carey's accountant entered the bar and found Carey unconscious. A nosale sign was rung up on the cash register, and there was no currency in the drawer.

At about 3:25 p.m. a grey pickup similar to defendant's cut in front of a school bus on the highway near defendant's house, causing the bus driver to stop suddenly to avoid a collision. The pickup entered the driveway of defendant's house. At 4 p.m. defendant's landlord went to the house to collect the rent, which was a month and a half in arrears. Defendant appeared in dark, not khaki, trousers. He promised to pay the rent soon.

Shortly after midnight, Deputy Sheriff Rushton confronted defendant and his wife in a cocktail lounge in Chico and informed defendant that the sheriff wanted to talk to him at the police station. Defendant asked if he could take his wife home first, and Rushton agreed. Defendant, his wife, and Rushton then drove to the Carter house in the pickup, while another officer followed in a patrol car. As thjey entered the house, defendant handed his wife a notebook, telling her to mail the letter therein. While Rushton waited in the living room, defendant looked in on his children in their beds. He then went into the bathroom and closed the door. Thereafter Rushton heard the latch click and called to defendant several times but got no response. When he heard something fall to the floor, he broke down the bathroom door. He found that defendant had slashed his arm with a razor and was lying on the floor with blood spurting from an artery. Despite defendant's resistance Rushton managed to check the flow of blood. He testified that defendant said to him after coming out of a state of shock, 'You wouldn't tell me what you wanted me for, but I knew'; that Rushton asked, 'What did you think we wanted you for?' and that defendant did not answer but 'just laid back and grinned.' Other police officers arrived, an ambulance was summoned, and defendant was removed to a hospital.

Early in November 1955, Carey's wallet, a flex-handle wrench, and a red cap were found under a bridge at Edgar Slough, about two-tenths of a mile from defendant's house. There was no money in the wallet, although Carey was in the habit of carrying substantial sums. One of defendant's neighbors, E. E. Myers, testified that he had lent defendant a set of tools that included a wrench of the same make and size as the one found in Edgar Slough and that this wrench was not among the tools shown to him by the police as those removed from defendant's truck.

Dr. Paul Kirk, a witness for the prosecution, testified that he examined the card room of the Log Cabin shortly after the homicide, and found that the grease on the floor was identical with grease on the wrench discovered in Edgar Slough. He also testified that there was blood on defendant's shoes and the lower part of his khaki trousers, and that the blood was type B, Carey's type. He further testified that he found on the inside of the right rear pocket of the trousers another blood stain and two hairs that had a 'microscopic identity' with hair taken from Carey's head. Finally, he testified that one of eleven hairs found in the cap from Edgar Slough was 'morphologically indistinguishable' from one-fifth of a sample of defendant's hair.

Defendant took the stand in his own behalf and denied that he had either robbed or beaten Carey. His own account of what he did on September 29th was substantially as follows: He left the Log Cabin shortly after 3 p.m. intending to go home, but after driving a short distance decided to return and try his luck again at the pinball machine. When he entered the bar and did not see Carey, he called several times. Receiving no answer, he looked into the card room. There he saw Carey lying on the floor with his face to the wall, bleeding and breathing hard. He bent over the body and rolled it towards him, and blood spattered on his trousers, shoes, and hands. He reached for a handkerchief in his rear pocket and must have stained it with blood.

Defendant testified that he was terrified by these events and by the realization that many persons had seen him in the bar and if police questioned him they would find out that he had violated his parole from the Washington State Penitentiary to which he had been sentenced for burglary. He therefore did not report his discovery to any one but drove straight home and later changed his trousers. In a statement to the police on September 30th, however, he had denied any knowledge that Carey had been beaten and stated that the blood on his trousers must have been his own.

Defendant explained his attempted suicide by testifying that he was short of money and owed a number of bills, that he had passed several bad checks, and that he was afraid he would be sent back to prison as a parole violator. Moreover, he was generally despondent and had intended for some time to kill himself. The notebook that defendant handed to his wife before his attempted suicide contained a letter to his uncle, written before the attack on Carey, declaring defendant's intention to kill himself.

Before trial defendant moved to suppress evidence allegedly acquired by a search and seizure in violation of defendant's constitutional rights. The motion was denied. During the trial defendant unsuccessfully renewed his objection to the use of some of this evidence. His objection compels examination of the circumstances under which the challenged evidence was obtained.

After defendant attempted to kill himself and Deputy Rushton broke into the bathroom, about half an hour elapsed before defendant was removed in an ambulance. Mrs. Carter testified that during that time she was confused by the numerous police coming in and out of the house and that her five children were upset and crying over the commotion and the sight of their father being carried out on a stretcher.

About 1:15 a.m., some fifteen minutes after defendant had been carried out and all the police had left, Deputy Arbuckle returned to the house. He testified that 'The sheriff told me to go back and get the letter Mr. Carter mentioned.' When Mrs. Carter answered the door, he told her that 'the sheriff wanted me to come back and get the letter,' or, according to Mrs. Carter, 'he had to see the letter.' She handed over the notebook containing the letter, and although she asked if she could keep the notebook itself, Arbuckle stated that it would be better if he took the letter and the whole notebook.

While Deputy Arbuckle was still in the house, two more officers appeared and questioned Mrs. Carter about the clothes defendant had been wearing during the day. They testified that they asked Mrs. Carter if they could see defendant's trousers and that she got them from another room. Mrs. Carter testified that it was the officers themselves who got the trousers. After examining the trousers, the officers left them on the ironing board and departed.

Around 2:15 a.m. Deputy Arbuckle returned to the house again and told Mrs. Carter, 'the Sheriff wanted me to bring those trousers up,' or, according to Mrs. Carter, 'that they would have to have the trousers.' Mrs. Carter said nothing and stepped aside; Arbuckle went in, took the trousers from the ironing board, and departed. Arbuckle did not inform Mrs. Carter that she could refuse to turn the trousers over to him, and she testified that she did not know she could refuse. She also testified that the police would not tell her why they were investigating her husband.

Still later, Arbuckle and Rushton returned once again, and, according to their testimony, asked Mrs. Carter if they could have the shirt, or 'informed (Mrs. Carter that they) * * * came after the shirt. * * *' They testified that this time they told her she could refuse. She said that the children were upset and she would prefer not to be disturbed again until morning, but the officers said that if they could have the shirt they would not bother her again. Mrs. Carter said all right, if this would be the last time, and Rushton went in and took the shirt from the bathroom.

About 8 a.m. more officers appeared at the house, examined defendant's pickup truck, which was parked either in the driveway or in front of the house, and made a list of the tools in it. They either told Mrs. Carter they were taking the truck away or asked and received her permission to take it away. It is...

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